At the end of the December, the EPA Science Advisory Board posted the text of a letter that the SAB intends to send to Administrator Wheeler concerning the administration's proposed revision to the WOTUS rule.The SAB's conclusions were not ambiguous.
The SAB finds that the proposed revised definition of WOTUS decreases protection for our Nation's waters and does not support the objective of restoring and maintaining "the chemical, physical and biological integrity" of these waters.
The SAB acknowledged that EPA has taken the legal position that the text of the statute does not support the broader definition of WOTUS taken in the 2015 WOTUS rule. The SAB's reply to EPA's legal view?
The SAB acts under no such constraint to give deference to shifting legal opinions in its advisory capacity and is in fact obligated by statute to communicate the best scientific consensus on this topic.
It is readily apparent that a conflict exists between current, recognized hydrological science versus the CWA and its subsequent case law. This suggests that new legislation is needed to update the CWA to reflect scientific discoveries since 1972.
I feel vindicated by the SAB letter, which pretty much echoes my take on the proposed revision to WOTUS. The Administration's position rests solely on its interpretation of the permissible scope of WOTUS under the Clean Water Act. As I noted then, and as the SAB noted in its letter, the Administration's interpretation ignores the very first sentence of the statute:
The objective of this Act is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.
If EPA thinks that the current statutory language does not support the 2015 WOTUS rule, then EPA should be telling President Trump that it needs to propose amendments to the CWA that would broaden the definition, because the science is clear – anything short of the 2015 Rule does not comport with the statutory objective to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters."
I'm not holding my breath.
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